United States v. Lane

• Decision Date: 21 October 1960
• Docket Number: No. 16874.,16874.
• Citation: 284 F.2d 935
• Parties: UNITED STATES of America, Appellant, v. Helen Mae LANE, Appellee. UNITED STATES of America, Petitioner, v. Honorable Fred KUNZEL, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

284 F.2d 935 (1960)

UNITED STATES of America, Appellant, v. Helen Mae LANE, Appellee.

UNITED STATES of America, Petitioner, v. Honorable Fred KUNZEL, Respondent.

No. 16874.

United States Court of Appeals Ninth Circuit.

October 21, 1960.

COPYRIGHT MATERIAL OMITTED

Joseph M. F. Ryan, Jr., Acting Asst. Atty. Gen., Laughlin E. Waters, U. S. Atty., Los Angeles, Cal., St. John Barrett, Harold H. Greene, Gerald P. Choppin, Attorneys, Department of Justice, Washington, D. C., for appellant and petitioner.

Gerald E. Olson, San Diego, Cal., for appellee.

Thomas Whelan, P. Timothy Murphy, Harry D. Steward, San Diego, Cal., for respondent, Kunzel.

Howard R. Harris, San Diego, Cal., amicus curiæ.

Harold R. Tyler, Jr., Asst. Atty. Gen., Harold H. Greene, Howard A. Glickstein, Attorneys, Department of Justice, Washington, D. C., for appellant and petitioner, United States.

Before HAMLEY, MERRILL and KOELSCH, Circuit Judges.

HAMLEY, Circuit Judge.

The United States here questions the action of the district court in granting probation to a minor female convicted of the illegal importation of heroin in violation of section 105 of the Narcotic Drugs Import and Export Act of 1956, 21 U.S. C.A. § 174. The government contends power to grant probation upon such conviction is denied by section 103(d) of this act, 26 U.S.C.A. § 7237(d). Section 7237(d) provides that as to all persons convicted of offenses specified therein "the imposition or execution of sentence shall not be suspended, probation shall not be granted * * *." Appellee and respondent contend, however, that the granting of probation in this case is authorized by section 2(a) of the Federal Youth Corrections Act, enacted in 1950, 18 U.S.C.A. § 5010(a).

The relevant facts are not in dispute. On March 2, 1960, Helen Mae Lane, then nineteen years of age, was convicted upon her plea of guilty of the illegal importation of heroin in violation of section 174. Having adjudged her a youth offender, the district judge suspended the imposition of sentence and placed her on probation for a period of three years, pursuant to section 5010(a). On March 8, 1960, proceeding under rule 35, Federal Rules of Criminal Procedure, 18 U.S. C.A., the government moved to correct the sentence. The validity of the sentence was challenged on the ground that it was below the mandatory minimum required to be imposed for violation of section 174. This motion was denied on March 18, 1960.

Being uncertain whether the proper procedure to obtain a review in this court would be by way of appeal or by petition for a writ of mandamus, the government decided to pursue both methods. On March 24, 1960, a notice of appeal from the order of March 18, 1960, denying the motion to correct sentence was filed. Five days later the government filed a notice of appeal from the judgment and sentence entered on March 2, 1960. A printed record was filed in this court on June 3, 1960.

On June 13, 1960, the government filed here a motion for leave to file a petition for a writ of mandamus and a motion to advance the case for hearing and decision pursuant to rule 8, (2) of the rules of this court, 28 U.S.C.A. On the same day the government filed a brief in support of the appeal and, alternatively, of the application for a writ of mandamus. We granted the motion for leave to file the petition and ordered the district judge to show cause why the writ should not issue. The matters were set for argument during the first month of the 1960 fall term of court.

Appellee Helen Mae Lane first contends that an appeal does not lie in this case and that, without reaching the merits, this court should in the exercise of its discretion deny the petition for a writ of mandamus. Respondent judge takes no position as to the availability of appeal but joins appellee in arguing that apart from the merits, the petition should be denied.

The government's right to appeal in criminal cases is governed by the Criminal Appeals Act, 18 U.S.C.A. § 3731. The judgment and commitment in which the suspension of sentence and granting of probation is provided for finds no counterpart in the types of orders appealable by the government under section 3731. It follows that the government may not appeal from that judgment or any part of it under section 3731.

The government does not contend otherwise. It argues, however, that the appeal from that part of the judgment which suspends the imposition of sentence and grants probation may be entertained outside of the Criminal Appeals Act under the general authority of 28 U.S.C.A. § 1291. This section gives United States Courts of Appeals jurisdiction of appeals from "all final decisions" of the district courts. In support of this contention the government cites Carroll v. United States, 354 U.S. 394, 403, 77 S.Ct. 1332, 1338, 1 L.Ed.2d 1442. It was there stated that certain orders relating to a criminal case "may be found to possess sufficient independence * * * to warrant treatment as plenary orders, and thus be appealable on the authority of 28 U.S.C. § 1291, 28 U.S.C.A. § 1291 without regard to the limitations of 18 U.S.C.A. § 3731."

In Carroll, however, it was pointed out (354 U.S. at page 400, 77 S.Ct. at page 1336) that "appeals by the Government in criminal cases are something unusual, exceptional, not favored," and that the Criminal Appeals Act was drawn to carefully limit government appeals.¹ Thus, instances in which orders in a criminal case will be found to possess both such independence and finality are, as the court said in Carroll, "very few." An order denying a motion to reduce excessive bail was held to fall in this category, the court citing Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3. Other cases were also noted in which orders for the suppression or return of illegally seized property had been made the subject of government appeals when the motion was made prior to indictment, or in a different district from that of the trial, or after dismissal of the case, or where the emphasis was on the return of property. But the court in Carroll distinguished these cases from one in which the motion was made after indictment in the district of trial.

The only instances which have been called to our attention in which the government has been permitted an appeal from an order granting probation have been where such order was entered on defendant's application for probation sometime after and independent of the judgment and sentence of the court.²

We hold that the attempted appeal from that part of the judgment which suspends the imposition of sentence and grants probation does not possess sufficient independence from the criminal proceeding to permit of a government appeal under 28 U.S.C.A. § 1291.

We reach the same conclusion with respect to the attempted appeal from the order denying the government's motion made under rule 35 to correct the sentence. Such a motion is made in the original case. Heflin v. United States, 358 U.S. 415, 418, 79 S.Ct. 451, 453, 3 L. Ed.2d 407. Since it pertains to the validity of the judgment originally imposed, it has no more independence from the criminal proceeding than would an appeal from the judgment itself.

The government's alternative method of obtaining a review by applying for a writ of mandamus is an available remedy in an appropriate case. This is made clear by the decision in Ex parte United States, 242 U.S. 27, 37 S.Ct. 72, 61 L.Ed. 129, in which such a writ was issued by the Supreme Court directing a district court to annul an invalid order suspending sentence.

Respondent and appellee do not dispute this proposition. However, they invoke the established rule that regardless of the merits the granting of relief by way of a writ of mandamus lies within the sound discretion of the court. In this connection they cite decisional support for the view that mandamus when directed against a judge is a drastic and extraordinary remedy to which resort should be taken only in extraordinary cases.³ Our attention has also been directed to United States v. Carter, 9 Cir., 270 F.2d 521, in which this court, exercising its discretion and without reaching the merits, declined to grant relief by way of mandamus in a case involving the same basic question which is now before us.

In Carter we declined to entertain a mandamus proceeding on the merits because of the lapse of time and intervening events between the date of sentence and the date the mandamus proceeding was instituted. It was our view that under the circumstances of that case there had been unnecessary delay in filing the petition with the result that the granting of the writ would have worked a substantial hardship which could have been avoided.

We do not have that feeling about this case. The government, being justifiably uncertain whether appeal or mandamus was the proper remedy, decided to follow both courses concurrently. An appeal was instituted shortly after the motion to correct sentence was denied. The record on appeal was docketed in this court on April 26, 1960, which was within the period of time prescribed by rule 39(c), Federal Rules of Criminal Procedure, 18 U.S.C.A. Rule 18, (1) of the rules of this court requires that appellants' briefs be filed within thirty days after receipt of copies of the printed record. In this case the government filed its brief ten days after the filing of the printed record. At the same time the government filed its motion to file a petition for a writ of mandamus.

It is true that the government could have filed the latter motion at an earlier date. But in view of the pendency of the appeal we would undoubtedly have withheld action on the motion until the appeal was also ready for consideration. As before indicated, the appeal was perfected with all reasonable expedition. In view of these circumstances we find no good reason for declining to consider on the merits the petition for a writ of mandamus. We now proceed to do so.

The federal courts have...